Hello.
I suggest you start by reviewing the relevant Contracting Principle which you'll find at www.iaccm.com/resources/contracting-principles/

These principles are the result of cross-industry, buy side and Sell side reviews and therefore represent market norms. You can use these with your customer to explain that unlimited liability is not market practice.

Greetings, thanks for the question. I look forward to the responses from other practitioners in this space too. In the meantime, I suggest you take a look at our contract standards clause library here: www.contractstandards.com/public/contracts/statement-of-work. While this provides a framework, the key is in the level of detail that you apply to the "Supplier Tasks and Responsibilities" section - the detail required is application-specific, so there are no hard and fast rules. I have used detailed project plans and, in some instances, references to operational collateral (handbooks, processes, and procedures, referenced but not included) to get to the level of detail necessary to define what is required. This works fine for transactional engagements but cannot cope with more complex requirements - where there is uncertainty in delivery or deliverable (or both!). Then, you'll need an agile approach to the SOW. Hope that helps.

Hi Padraic, thanks for your post and certainly we agree that good negotiation skills are needed now more than ever. I am not sure whether you have had the chance to look at our Managing Contracts Virtually program and the webinars that we have produced on Virtual Negotiations. Links are here for your reference. Many thanks! Sally

At least under English law, what qualifies as FM depends only upon the wording of the relevant contract clause. Just because a situation such as Covid is known at the time of contracting does not I believe, of itself, prevent a party relying on an appropriate clause providing you can bring yourself within the wording. Of course, if the relevant clause limits FM to matters 'not reasonably foreseeable' then that would be another matter but many clauses do not do so.

• Schneider Electric
•
2020-05-14 08:35:14

Good question. I am currently in this situation whereby I am negotiating another new similar project with the same customer. Sue to the similarities, we are merely updating the T&Cs from the older (now almost complete contract). They are permitting us to make some minor adjustments to the terms of this new contract. I see the potential re-occurrence of Covid-19 in the fall as no longer being 'unforeseen' so may be an issue relying on FM if required eg. if we are delayed as a result, for this reason, I am asking for 'Covid-19' to be named as one of the causes under the Contract ie. added to the list of FM events named in the contract. My colleague in legal is helping me to pull the wording together atm. This is my proposal for dealing with this potential risk.

Hi Matthew, Have you looked at the IACCM Contract Design Pattern Library: contract-design.iaccm.com/?

• IACCM
•
2020-05-05 13:26:05

Hi Matthew
Have you looked at the examples and guidance provided in the Contract Design Library on this website (look under the Resources tab). This offers examples, ideas and guidance. IACCM works with a growing number of member companies on simplification and design projects so we also have specialists on our team who can offer further advice or examples you can use.

I agree that simplification is the only way to go. More and more companies are realising the benefits of reducing sales cycles, negotiation times etc together with ease of understanding of contracts by key stakeholders and customers.

I agree that too much emphasis is often placed on covering off risk when a certain amount of risk is an element of all contracts. Managing that risk in an intelligent manner is key and part of that management is using the right contract terms for the relevant offering. IACCM's VCU Framework will help companies to manage uncertainty through contracts.

We would welcome the opportunity to explain the benefits of contract simplification and design together with the VCU Framework to your senior business and legal teams. Please reach out to me personally if you would like to discuss. My email is pdoyle@IACCM.com